Putting Calmusky to Bed: A Case Comment on Kukna Estate v. Giasson, 2026 ONSC 1842
Overview
Most practitioners I know have regarded Calmusky v. Calmusky, 2020 ONSC 1506, as wrongly decided since the day it came out. The decision applied the presumption of resulting trust from Pecore v. Pecore to a beneficiary designation on a registered account, a conclusion that was difficult to reconcile with the governing legislation and with the way financial advisors and estate planners have long understood these instruments to work. But wrongly decided or not, Calmusky was considered good law, and it imposed a caveat on conversations about beneficiary designations. We could tell clients that naming a beneficiary on a TFSA or RRIF would enable the funds to pass outside the estate, but we had to add that there was an Ontario decision suggesting otherwise, and that the issue was not fully settled.
Mak Estate and Fitzgerald brought important clarifications. Fitzgerald settled the question here in Nova Scotia. Elsewhere in Canada, the issue remained somewhat unsettled.
In Kukna Estate v. Giasson, 2026 ONSC 1842, Justice Horvat of the Ontario Superior Court has now put Calmusky to bed. She departs from it directly and with a careful legislative analysis that should give practitioners comfort the issue is resolved.
I. The Facts
The background is straightforward. Ernie Kunka and Rose Marie Olar were common-law partners for over thirty years. Marie had two children from a previous relationship, Ann-Marie Mills and Michael Olar. Ernie was their stepfather.
In October 2021, Marie and Ernie made spousal wills leaving their assets to each other, with a further gift over to Mills and Olar. Marie died the following month. Ernie received her life insurance, TFSA, and RRIF by right of survivorship and as the designated beneficiary.
Following Marie's death, Ernie became close with a long-time friend, Angele Giasson. In January and March 2023, he designated Giasson as the beneficiary of his TFSA and RRIF, replacing Mills and Olar. Giasson made no financial contributions to either account. Ernie also updated his will, but the will did not mention the TFSA or RRIF, and it continued to name Mills and Olar as his sole beneficiaries.
Ernie passed away in August 2023. His will was not challenged. Mills, as estate trustee, brought this application seeking a direction from the court that the TFSA and RRIF should revert to the estate, either under the presumption of resulting trust or on the basis of undue influence.
She failed on both grounds.
II. The Conflict: Calmusky and Mak Estate
Pecore is the starting point: a gratuitous transfer from a parent to an adult child carries a presumption of resulting trust, and the child bears the burden of proving the parent intended a gift.
In 2020, Justice Lococo of the Ontario Superior Court extended the reach of Pecore in a way that few found persuasive. In Calmusky, he applied the presumption of resulting trust to a beneficiary designation on a RIF. The reasoning focused on the evidentiary challenge common to both contexts: in both cases, the deceased is no longer available to explain what they intended, and the person receiving the funds is better positioned to bring evidence of the circumstances. On that basis, Justice Lococo concluded that the presumption should apply.
The logic had a surface appeal. But it ignored the fundamental difference between the two instruments. A joint account gives the transferee immediate access to the funds during the transferor's lifetime. A beneficiary designation does not. The designated beneficiary has no access, no control, and no entitlement until the account holder dies. The account holder can change the designation at any time, for any reason, without the beneficiary's knowledge or consent.
Applying Pecore to that arrangement was, in the view of many practitioners, an error, and a consequential one at that. If naming a beneficiary on a registered account gave rise to a presumption of resulting trust, then a validly designated beneficiary bore the burden of proving the account holder's intention. For financial advisors and estate planners who counsel clients to use beneficiary designations precisely because they pass assets outside the estate, Calmusky undermined the very premise of the advice.
A year later, Justice McKelvey of the same court said what many were thinking. In Mak (Estate) v. Mak, 2021 ONSC 4415, he expressed doubt that the resulting trust doctrine applied to beneficiary designations at all. The whole point of naming a beneficiary, as he put it, is to specify what is to happen to an asset upon death. That is a testamentary act, not an inter vivos gift. The resulting trust presumption has no application to it.
Not long after, Justice Murray of the Nova Scotia Supreme Court took up the question in Fitzgerald Estate v. Fitzgerald, 2021 NSSC 355, preferred Justice McKelvey's reasoning, and grounded the analysis in the statutory framework governing registered plans. Fitzgerald settled the law in Nova Scotia. In Ontario, however, Calmusky and Mak Estate remained on the books as two irreconcilable decisions from the same court.
III. Justice Horvat's Analysis
Justice Horvat preferred the court’s reasonong in Mak Estate. Her own analysis does not rest on a single ground.
She began with the structural distinction. The joint bank account in Pecore was not a registered account. There was no ability to designate a beneficiary. The adult child was added as a joint account holder and had access to the funds immediately, during her father's lifetime. A beneficiary designation on a TFSA or RRIF is different in kind. The designated beneficiary gains no inter vivos control. The funds remain in the account holder's name, under the account holder's sole authority, until death. The account holder can revoke or change the designation at any time. The beneficiary's entitlement crystallizes only on the account holder's death, and only if the designation has not been changed by then.
She then turned to the legislation. Part III of Ontario's Succession Law Reform Act permits individuals to designate a beneficiary of a "plan", defined to include RRSPs, RRIFs, and TFSAs, either by signed instrument or by will. Under section 53, the institution administering the plan must pay the funds to the designated beneficiary upon the plan holder's death. The legislation, in Justice Horvat's view, signals that registered accounts are meant to be treated according to their beneficiary designations, not as part of a resulting trust for the benefit of the estate.
This point was reinforced by the Ontario Court of Appeal's decision in Amherst Crane Rentals Ltd. v. Perring (2004), 241 DLR (4th) 176, which held that the proceeds of an RRSP do not form part of the estate but transfer directly to the designated beneficiary on the account holder's death. If the proceeds of a registered account were estate property, section 72(1)(g) of the SLRA would be meaningless. That provision includes amounts payable under beneficiary designations in the value of an estate for dependants' relief purposes. It only makes sense if those amounts do not already form part of the estate.
Alger v. Crumb, 2023 ONCA 209, reinforced the point. The Court of Appeal treated the designation of beneficiaries on RRIF and TFSA plans as testamentary dispositions requiring express revocation under Part III, and distinct from other testamentary dispositions that may be revoked by a general revocation clause in a will.
Justice Horvat also noted, and this is significant, that Calmusky did not consider either the provisions of the SLRA or the Court of Appeal's decision in Amherst Crane. It was decided before Alger. In these circumstances, Justice Horvat concluded that Amherst Crane should be preferred over Pecore when registered accounts with beneficiary designations are at issue.
In adopting this approach, Justice Horvat also endorsed the reasoning in Fitzgerald. The analysis there had done much of the statutory work her own decision built upon.
IV. Implications for Practitioners
The designation will be respected, but document the intention anyway. Kukna confirms that a validly made beneficiary designation on a registered account is a testamentary disposition. It directs for the funds to pass outside the account holder’s estate. The onus falls on the party challenging the designation to prove that the account holder intended otherwise. That said, a brief note in the estate planning file explaining why the client chose a particular beneficiary, or a memorandum accompanying the will, can only strengthen the position if a challenge arises.
The will and the designation should be considered together. One of the striking features of Kukna is the gap between Ernie's will, which named Mills and Olar as beneficiaries, and his TFSA and RRIF designations, which named Giasson. Justice Horvat treated this gap as evidence of intention: Ernie deliberately kept the registered accounts separate from his will. That may not always be the inference a court draws. Practitioners should ensure that clients understand the relationship between their will and their beneficiary designations, and that the two instruments are aligned.
The caveat can come off. Kukna does not merely disagree with Calmusky. It departs from it on legislative grounds that Calmusky never addressed. Three trial courts across two provinces have now declined to apply Pecore to beneficiary designations, and the Ontario Court of Appeal's reasoning in Amherst Crane and Alger supports the same conclusion. No appellate court has addressed the question directly, but Calmusky now appears to be an abberation. For practitioners who have been hedging their advice on beneficiary designations, Kukna should provide real comfort.
For Nova Scotia practitioners, Kukna is welcome confirmation. Fitzgerald has been the answer here for some time. An Ontario court has now arrived at the same place, by the same route, and with reference to Justice Murray’s reasons in Fitzgerald. So while it remains prudent to document the intention behind any given designation, practitioners can take heart in knowing that beneficiary designations can stand on their own.
V. Conclusion
Calmusky was not appealed, and it will not be. The decision remains on the books as a matter of record, but after Mak Estate, Fitzgerald, and now Kukna, it no longer stands as good authority. It should now be abundantly clear that a beneficiary designation on a registered account is a testamentary disposition, and that it does what it says it does.
